Wisconsin judges are coming out of a year unlike any other.
The COVID-19 pandemic tested courts’ resilience and commitment to justice, just as it proved an ordeal for people in nearly every profession. The virus took lives and delayed justice for many as courtrooms halted in-person proceedings. Throughout it all, Wisconsin courts managed to show they could adapt and innovate to continue serving the public.
These circumstances weighed heavily on the minds of the Wisconsin Law Journal’s editorial staff members as we considered how to compile and present data for our publication’s annual assessment of state judges’ affirmance rates. The courts all remained operational throughout 2020, but the ways in which they did so varied from January to December and from county to county.
Now, as health-related precautions are being lifted throughout the state and courts have resumed conducting business in a more-or-less normal way, the Law Journal has decided to take a look at how the judges fared as they worked in the months following the advent of the pandemic. In doing this, we’ve decided to diverge slightly from our previous similar tabulations, in which we looked at the results for a particular calendar year. This time around, we were particularly interested in seeing what effect the pandemic has had.
Wisconsin circuit-court judges average 81% affirmance rate
Shortly after COVID-19 first struck, the Wisconsin Supreme Court responded by issuing two administrative orders, both on March 22, 2020, suspending most in-person hearings. These were followed two months later with a decision allowing the lower courts to resume in-person hearings and jury trials in counties where court officials had put proper health and safety precautions in place.
In the 673 cases decided in this period, the Court of Appeals affirmed circuit-court judges 81% of the time.
Choosing these events as our starting point, we ended up looking at opinions dated March 22, 2020, through April 30, 2021. In the 673 cases decided in this period, the Court of Appeals affirmed circuit-court judges 81% of the time. Both the caseload and percentage were slightly lower than the comparable figures for 2018 (the data are not available for 2019). From the start to the end of 2018, judges had an average 85% affirmance rate on more than 700 cases.
No single cause could be assigned for the decline in the affirmance rate. One big influence, no doubt, was the addition of a new mixed-ruling category in the Law Journal’s database for cases that are affirmed in part and reversed in part (see our Methods section for more information). In deciding to tally mixed cases as both affirmed and reversed, we fully recognized that the change would make comparisons with previous years somewhat tenuous.
When analyzing affirmance rates on a district basis, District III judges came out on top with an average of 87%. District IV matched the total average with 81%, whereas District II had 79% and District I 74%.
Milwaukee County Judge Mark A. Sanders had 19 cases reviewed by the Court of Appeals, the most of any judge on this list. The appellate court affirmed him 97% of the time. A single mixed case brought down his rate from 100%.
The high court ruled on 39 appellate decisions from March 22, 2020, to April 30, 2021, affirming appellate judges about 63% of the time.
Also new this year was our assessment of how appellate judges fared before the state Supreme Court. The high court ruled on 39 appellate decisions from March 22, 2020, to April 30, 2021, affirming appellate judges about 63% of the time.
In our account, every judge sitting on a panel that handed down a decision received credit for it unless he or she wrote a dissent. Interestingly, Justice Brian Hagedorn –during his time as a District II appellate judge – was the only judge to have dissented from the opinions reviewed here. In both cases involving him, the state Supreme Court reversed the majority’s holding, meaning Hagedorn would have been affirmed.
Judge Paul F. Reilly, District II’s presiding judge, had 11 opinions reviewed by the state Supreme Court, the most of any of the appellate judges listed here. His affirmance rate was 59%, and he had five affirmed, three reversed and three mixed rulings. District II had the highest average affirmance rate at 73%, followed by District III at 68%, District I at 60% and District IV at 56%.
Methods for calculating judicial affirmance rates
In compiling the data, we counted decisions that were handed down by the Wisconsin Court of Appeals and Wisconsin Supreme Court from March 22, 2020, to April 30, 2021, and that are listed on the Wisconsin Court System website.
Consolidated cases were counted as one decision. Rulings were considered mixed if the court that handed them down had decided the various issues presented in differing ways. Our intent was to objectively present the data by removing the need to try to cram a case into a binary classification through a subjective decision about whether the ruling had leaned “more” toward affirmation or “more” toward reversal. Only the majority’s ruling was indicated for decisions that were not unanimous.
Also important to note is that the judges listed here could be deemed presiding judges who were reversed even if all they had really done was enter an order that was merely consistent with case law established by another judge.
Similarly, a circuit-court judge’s decision could be reversed by the Court of Appeals but ultimately affirmed by the state Supreme Court. In a case of this sort, the previous reversal would still count as a reversal by the Court of Appeals.
It’s also worth pointing out that as the law changes, so can a judge’s holding. When a particular holding was issued, it could have been entirely consistent with binding precedent and yet could have still been later reversed because a subsequent decision had changed the law.
We recognize that only a small percentage of judges’ cases result in appellate or Supreme Court review. This collection of data is merely a source of information for the Wisconsin legal profession. To learn more about the opinions behind the numbers, search the spreadsheet below.
Story and data gathering by Michaela Paukner, Wisconsin Law Journal legal reporter
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